CHILD SUPPORT (ASSESSMENT) ACT 1989 No. 124 of 1989 - SECT 117 Matters as to which court must be satisfied before making order

CHILD SUPPORT (ASSESSMENT) ACT 1989 No. 124 of 1989 - SECT 117

117. (1) Where:

   (a)  application is made to a court having jurisdiction under this Act for
        an order under this Division in relation to a child in the special
        circumstances of the case; and

   (b)  the court is satisfied:

        (i)    that one or more of the grounds for departure mentioned in
               subsection (2) exists or exist; and

        (ii)   that it would be:

                (A)  just and equitable as regards the child, the
                     custodian entitled to child support and the
                     liable parent; and

                (B)  otherwise proper;
to make a particular order under this Division; the court may make the order.

(2) For the purposes of subparagraph (1) (b) (i), the grounds for departure
are as follows:

   (a)  that, in the special circumstances of the case, the capacity of either
        parent to provide financial support for the child is significantly
        reduced because of:

        (i)    the duty of the parent to maintain any other child or another
               person; or

        (ii)   special needs of any other child or another person that the
               parent has a duty to maintain; or

        (iii)  commitments of the parent necessary to enable the parent to
               support: (A) himself or herself; or

                (B)  any other child or another person that the parent has a
                     duty to maintain;

   (b)  that, in the special circumstances of the case, the costs of
        maintaining the child are significantly affected:

        (i)    because of:

                (A)  high costs involved in enabling a parent access to the
                     child; or

                (B)  special needs of the child; or

        (ii)   because the child is being cared for, educated or trained in
               the manner that was expected by his or her parents;

   (c)  that, in the special circumstances of the case, application in
        relation to the child of the provisions of this Act relating to
        administrative assessment of child support would result in an unjust
        and inequitable determination of the level of financial support to be
        provided by the liable parent for the child because of:

        (i)    the income, earning capacity, property and financial resources
               of either parent or the child; or

        (ii)   any payments, and any transfer or settlement of property,
               previously made (whether under this Act, the
               Family Law Act 1975 or otherwise) by the liable parent to the
               child, to the custodian entitled to child support or to any
               other person for the benefit of the child.

(3) For the purposes of sub-subparagraph (2) (b) (i) (A), costs involved in
enabling a parent access to the child are not, if those costs are costs of a
parent and not costs of another person, to be taken to be high unless the
total of those costs during a child support year is more than 5% of the child
support income amount for the year in relation to the parent concerned.

(4) In determining whether it would be just and equitable as regards the
child, the custodian entitled to child support and the liable parent to make a
particular order under this Division, the court must have regard to:

   (a)  the nature of the duty of a parent to maintain a child (as stated in
        section 3); and

   (b)  the proper needs of the child; and

   (c)  the income, earning capacity, property and financial resources of the
        child; and

   (d)  the income, earning capacity, property and financial resources of each
        parent who is a party to the proceeding; and

   (e)  the commitments of each parent who is a party to the proceeding that
        are necessary to enable the parent to support:

        (i)    himself or herself; or

        (ii)   any other child or another person that the person has a duty to
               maintain; and

   (f)  the direct and indirect costs incurred by the custodian entitled to
        child support in providing care for the child; and

   (g)  any hardship that would be caused:

        (i)    to:

                (A)  the child; or

                (B)  the custodian entitled to child support;
by the making of, or the refusal to make, the order; and

        (ii)   to:

                (A)  the liable parent; or

                (B)  any other child or another person that the liable parent
                     has a duty to support;
by the making of, or the refusal to make, the order.

(5) In determining whether it would be otherwise proper to make a particular
order under this Division, the court must have regard to:

   (a)  the nature of the duty of a parent to maintain a child (as stated in
        section 3) and, in particular, the fact that it is the parents of a
        child themselves who have the primary duty to maintain the child; and

   (b)  the effect that the making of the order would have on:

        (i)    any entitlement of the child, or the
               custodian entitled to child support, to an income tested
               pension, allowance or benefit; or

        (ii)   the rate of any income tested pension, allowance or benefit
               payable to the child or the
               custodian entitled to child support.

(6) In having regard to the proper needs of the child, the court must have
regard to:

   (a)  the manner in which the child is being, and in which the parents
        expected the child to be, cared for, educated or trained; and

   (b)  any special needs of the child.

(7) In having regard to the income, earning capacity, property and financial
resources of the child or a parent of the child, the court must:

   (a)  have regard to the capacity of the child or parent to earn or derive
        income, including any assets of, under the control of, or held for the
        benefit of, the child or parent that do not produce, but are capable
        of producing, income; and

   (b)  disregard:

        (i)    the income, earning capacity, property and financial resources
               of any person who does not have a duty to maintain the child,
               or who has such a duty but is not a party to the proceeding,
               unless, in the special circumstances of the case, the court
               considers that it is appropriate to have regard to them; and
               (ii) any entitlement of the child or the custodian
               entitled to child support to an income tested pension,
               allowance or benefit.

(8) In having regard to the direct and indirect costs incurred by the
custodian entitled to child support in providing care for the child, the court
must have regard to the income and earning capacity foregone by the custodian
entitled to child support in providing that care.

(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the
court may have regard.